But these multi-million dollar legal bills per capital criminal
raise a serious legal concern: Can America afford defendants' right to counsel?
Justice At What Price?The Sixth Amendment Right to Counsel

At
a long-delayed preliminary hearing held last week, a federal judge
ruled that Oklahoma City bombing conspirator Terry Nichols can be
tried on state charges alleging 160 counts of first degree murder
in connection with the 1995 bombing of the Murrah Federal Building.
Nichols was already convicted in 1997 of federal conspiracy and
involuntary manslaughter charges for the deaths of eight law enforcement
officers in the bombing. He is serving a life prison sentence for
his federal convictions because the jury deadlocked over whether
to give him the death penalty, and the judge, to whom the sentencing
fell, could impose no more than life without parole.

Despite
Nichols' federal convictions and sentence, the push continues for
state prosecution because some victims' families fear that, without
a death penalty conviction, Nichols may eventually be successful
in his federal appeals and regain his freedom. The U.S. Supreme
Court has already turned down an appeal from Nichols arguing that
a state trial for the 160 non-law officer deaths amounts to double
jeopardy, and prosecutors in the state case are seeking the death
penalty.

At
the same time, other victims' families are questioning the high
cost of trying Nichols for murder in state court at a time when
Oklahoma is facing a $168 million budget shortfall. Housing Nichols
in preparation for trial has been a financial drain considering
the necessity of holding him in isolation on the 13th floor of the
Oklahoma County Jail with five guards whose sole responsibility
is to keep watch over him. Worse yet, it is reported that about
$2.5 million has already been spent on Nichols' defense.

Nichols'
preliminary hearing on the state murder charges was postponed seven
times as the court sought to resolve legal disputes, including complaints
by Nichols' court-appointed defense attorney Brian Hermanson that
his legal bills were not being paid promptly. A legislative fund
initially set up to pay for the trial expenses was cancelled in
1999. The defense is now paid through court fees financed through
an Oklahoma County court fund, administered by the Oklahoma Supreme
Court, and the prosecution, which had received about $500,000 from
the legislative fund before it was cancelled, is now funding its
case through the district attorney's regular operating funds.

Nichols' current $2.5 million legal defense costs pale in comparison to the
nearly $100 million reported cost to the taxpayers for the exhaustive
investigation, prosecution and defense of co-conspirator Timothy
McVeigh, who was executed by the federal government in June 2001.

Although
the taxpayer costs for McVeigh's case may be unusual, that is not
so for $2.5 million already charged to taxpayers for Nichols' defense,
with the total increasing daily. The Los Angeles Times,
almost 10 years ago, reported that courtroom costs, prosecution
and defense teams, appellate review and habeas corpus writs totaled
approximately $3.5 to $4.5 million for each and every defendant
sentenced to death.

But
these multi-million dollar legal bills per capital criminal raise
a serious legal concern: Can America afford defendants' right to
counsel?

Ensuring
that indigent criminal defendants receive competent counsel is one
of the founding principles of our legal system and critical to a
fair justice system. The U.S. Constitution affords the criminally
accused many rights, among them the right to remain silent, the
right to speak to an attorney before answering questions, the right
to a jury trial, and the right to an appeal after a guilty verdict.

Last
month marked the 40th anniversary of the single biggest
case to change the U.S. criminal justice system -- Gideon v. Wainwright.
Before the landmark ruling, indigent persons accused of crimes could
be convicted and sent to prison without the benefit of representation
by counsel. But in 1963 the U.S. Supreme Court changed all that
by ruling that the Sixth and Fourteenth Amendments require the states
to provide free legal representation to persons accused of crimes
who cannot afford to pay for counsel.

Since
Gideon, the fundamental right to counsel has been codified
by statute or adopted by common law in the courts in every state. In most states, the rule applies broadly to all criminal prosecutions,
while in others it is limited to more serious crimes where the accused
faces a prison term.

More
recently, the U.S. Supreme Court narrowed the application of the
Sixth Amendment. In Alabama v. Shelton, the High Court reaffirmed
the constitutional mandate that defense counsel must be appointed
in any criminal prosecution, whether classified as petty, misdemeanor,
or felony, which actually leads to imprisonment, even for a brief
period. The Court then held that counsel need not be appointed
when the defendant is fined for the crime, but not sentenced to
jail.

Undoubtedly,
defense of indigent persons does not come cheap. With limited financial
support from the state, many cash-strapped counties have failed
to provide decent legal representation to poor defendants, even
in capital cases. In a Mississippi courtroom last week, oral arguments
were heard in Quitman County's lawsuit against the state over who
should pay for indigents' legal defense. Quitman County sued the
state arguing that the state breached the constitutional right to
counsel by not creating a statewide system of public defenders,
choosing instead to rely upon private attorneys who are under contract
to take on indigent cases part-time. Attorney Robert McDuff, in
his opening statement for the County, cited evidence from studies
of indigent cases in Quitman County showing that in each case pleas
were entered the same day the defendant's attorney was appointed,
proving that there was little investigation, consultation or negotiation
by attorneys with their clients.

Many
critics of this system contend that, under circumstances like those
in Quitman County, the constitutional presumption of innocence until
the government proves a defendant guilty has given way to the accused
being ruled "innocent until proven without funds." They argue that
changes must be made to help defense teams compete on a level playing
field with often better-paid and equipped prosecutors.

But
such a perceived inequity in legal teams is not the norm throughout
America. In Utah, for example, where the drifters accused of abducting
Elizabeth Smart recently received court-appointed counsel after
claiming that they could not afford attorneys in their first court
appearance, the Deseret News reported that "[a] fact of life
in Utah's criminal justice system is that people who commit some
of the most evil crimes end up getting some of the best defense
attorneys in the state." Only about 40 lawyers make up Utah's prominent
list of "Rule 8 qualified" attorneys who meet certain stringent
criteria to defend death penalty cases. Under Utah's Rule 8, an
indigent person facing a capital sentence can get two court-appointed
attorneys. Their fees are paid from the Utah Indigent Capital Defense
Fund, to which many counties contribute in order to avoid the prospect
of raising taxes to pay for indigent defense costs.

With
the volume of publicly-financed murder cases monopolizing local
and national media coverage, judges, under scrutiny to keep court
public defense costs down, have increased their oversight of appointed
counsels' legal bills. For example, lawyers for sniper suspect
John Allen Muhammad recently won permission from Prince William
County Circuit Court Judge LeRoy F. Millette, Jr., to hire a three-member
team to assess Muhammad's mental health, but were denied, at least
temporarily, a request to engage two investigators, one of whom
was to review Muhammad's background and personal history, the other
who was to identify and contact witnesses who might testify at his
trial. In denying the request, Judge Millette indicated that he
needed more information about what the investigators will do and
how much they will charge before he could approve their addition
to the burgeoning defense team.

In
addition to scrutinizing legal defense bills, judges should heighten
their analysis under state statutory provisions in assessing the
present ability of the defendant to pay all or a portion of the
defense costs. Moreover, in some instances state law allows a judgment
to be entered requiring the accused to repay the public cost of
providing effective representation.

Such
a statute exists in California where, at his arraignment on double
murder charges, Scott Peterson told Superior Court Judge Nancy Ashley
that he could not afford a lawyer. He was assigned to Stanislaus
County Public Defender Tim Bazar, who assigned three of a staff
of 23 attorneys to begin working on his defense. Attorney General
Bill Lockyer was reported as saying he expected Stanislaus County
to petition the state for financial aid to pay for the defense in
this case, opening up the possibility that there could be more attorneys
and/or experts getting involved.

One
of the high-profile names being thrown around to join the defense
team was Mark Geragos. Not known for sharing the spotlight, the
same Mark Geragos recently replaced the Public Defender's Office
as sole counsel for Peterson. News reports indicate that Peterson's
family engaged Geragos to represent him, apparently using their
own funds.

No
doubt the change in counsel saves the Stanislaus County taxpayers
thousands, if not millions, of dollars to defend Peterson. What
is not known is how much, if anything, the family is being charged
by Geragos. This is certainly a question that should be explored
further by Judge Ashley and Mr. Bazar.

California
law provides that, in any case in which the defendant hires counsel
replacing a publicly provided attorney, the court shall make a determination
of the defendant's ability to pay, provided that the applicable
county has adopted a resolution by the board of supervisors to such
effect. Assuming Stanislaus County has adopted such a resolution,
the court should make a determination of Peterson's present ability
to pay and a motion to recover defense costs, even just for the
weeks of work by the public defender's office, should be filed.
It's a pity if Stanislaus County has not adopted such a resolution
and therefore cannot seek repayment. It's deplorable if it has
and it fails to seek redress.

While
it is undeniably unpalatable for the taxpayers to subsidize millions
in defense costs for perpetrators of the most heinous crimes, we
must acknowledge the legitimacy of Sixth Amendment protections,
as well as accept a lesser of evils: undergoing the expense rather
than seeing criminals freed on the basis of inadequate counsel,
which only adds to anguish and expense. That said, taxpayers also
have the right to insist that the right to counsel is not abused.